New ruling on California teacher tenure sparks call for change

Though a judge’s recent decision to throw out tenure and other protections long afforded to California’s teachers could take years to play out, school reformers are hoping the ruling inspires education leaders to take matters into their own hands.

Los Angeles Unified School District Superintendent John Deasy is calling on Gov. Jerry Brown, state Superintendent of Public Instruction Tom Torlakson and union leaders to join him in rewriting the long-entrenched laws that govern how teachers are hired and fired.

But teacher unions in California view last week’s sharply worded judgment as the latest attack on teachers by a faction they believe has designs on weakening unions and privatizing education in the name of civil rights.

“It’s definitely going to embolden those who have tried to impose their vision of public education — or a privatized version of education — on California,” said Frank Wells, a spokesman for the California Teachers Association.

Tuesday’s 16-page ruling, in which Los Angeles Superior Court Judge Rolf Treu declared tenure laws unconstitutional, also has cast a spotlight on how the state’s teacher tenure laws are among the toughest in the nation.

California, Treu said, is among just five “outlier” states where the probationary period used to determine whether junior teachers are worthy of lifetime protections — a status widely referred to as “tenure” — is two years or less. Forty-one states have a probation period that lasts at least three years, and four states have no tenure at all. Only one state, Hawaii, makes it easier for teachers to obtain tenure and its guarantees, awarding the status after just one year on the job.

In his ruling — which is expected to be challenged — Treu imposed an injunction blocking tenure laws for public school teachers, but he placed a stay on the edict pending an appeal. He also suggested that both sides, rather than leave the matter up to the courts, hash out a solution in the Legislature.

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That’s exactly what Deasy hopes to accomplish. The reform-minded leader of the nation’s second-largest school system says three years should be the minimum for tenure awards, as it gives administrators a better chance to evaluate new hires and teachers “an opportunity to ... grow over time.”

Deasy also believes the state’s seniority rules are too rigid and scoffs at the suggestion that objectivity is a good enough reason for making it the only factor in determining who gets laid off.

“You want to find the most objective criteria, why don’t you use height?” he said. “That’s objective. And almost as ludicrous as using the day and hour you were hired.”

Deasy is hoping to form a coalition of educational thought leaders to “produce a constitutionally sound and accepted new set of laws in California.”

But the California Teachers Association isn’t eager to join.

“We believe the laws in this case are both constitutionally and educationally sound, and will be reaffirmed so on appeal,” Wells said. “So there is no point in speculating about forming coalitions around hypothetical legislation that we don’t believe is necessary or good for California students.”

The CTA perceives the lawsuit — bankrolled by a Silicon Valley tech mogul and supported by some of the nation’s fiercest critics of teacher unions — as just the latest chapter in a long campaign of attacks against their profession.

Citing an example, Wells pointed to a full-page ad published last week in USA Today depicting the legs of what appears to be an elementary-age student stuffed head-first into a trash can.

“How can you stop teachers unions from treating kids like garbage?” the ad asks. “Sue. … It worked in California.”

Teacher unions in California have successfully fought previous attempts to rewrite the laws. In 2005, for instance, the CTA spent $50 million fighting an initiative backed by then-Gov. Arnold Schwarzenegger to lengthen the two-year probationary period to five years. It failed at the polls, with 55 percent of the electorate voting against it. (Schwarzenegger was blasted for spending $80 million on the special election.)

Meanwhile, a movement of reform has been rolling across the nation over the past five years. Some of the changes — such as tying teacher evaluations to test scores and easing restrictions on establishing charter schools — have been sponsored by the U.S. Department of Education in the form of Race to the Top funding. Other changes appear to be more the result of a public backlash against unions: Several states in recent years have stripped away job protections for teachers.

Depending upon whom you ask, California is either a laggard on these efforts or has refused to buckle to pressures applied by powerful interests with an agenda to privatize education.

(The nation’s largest state by population in late 2011 was denied $49 million in Race to the Top funding in part for submitting an application that did not link student test scores to teacher performance evaluations.)

However, California unions have demonstrated a willingness to streamline the notoriously time-consuming disciplinary process.

Just two days after last week’s ruling, the state Assembly on Thursday approved a bill that eases the process of firing teachers charged with egregious acts of misconduct. Authored by Assemblywoman Joan Buchanan, D-Alamo, and supported both by the CTA and EdVoice — an advocacy group with which the union is often at odds — the bill essentially would tighten the timeline for hearings and appeals. AB 215 now will go before the state Senate.

But when it comes to matters like the two-year probationary period — which educators say really amounts to 18 months — union officials are resolute in their contention that it is plenty of time to determine whether a new teacher is worthy of permanency.

“If you’re a school principal and you can’t figure that out within two years, then you’re probably not a very effective administrator,” said the CTA’s Wells.

Some administrators agree.

Don Brann, the state-appointed trustee overseeing the Inglewood Unified School District and an award-winning school administrator, said he has had success using a simple rule of thumb: “If in doubt, put them out.”

“Then I get to hire new people for those positions and start over,” he said.

But others say they would like to have more time on probationary employees — as well as more flexibility on the seniority rules.

“Whenever we were forced to endure a layoff, those that left were often the best and brightest, because the rule is not flexible,” said Bob Cox, interim superintendent of the Centinela Valley Union High School District in Lawndale.

In the wider world, he said, “the vast majority of employees are ‘at-will.’ It means you have to perform every day. You gotta get here each day and do the job, and if you stop doing the job, there’s going to be questions.”

Teachers, however, say their profession is different from most others.

Jack Foreman, president of the Centinela Valley teachers union, said education is a field rife with countering fads and philosophies.

Many years ago, he said, the principal at the school where Foreman works as a counselor tried to open up to all students the independent-study option allowing them to complete their work at home.

“The principal thought that was a good idea; I thought it was a stupid idea,” he said. “But if I didn’t have my permanency, and I had said that, I’d say, ‘My gosh, if I express this, I may not have a job in a few months.’”

Nationwide, Tuesday’s ruling made a huge splash. Deasy said that as of Thursday, he’d counted 190 articles, as well as editorials and op-ed pieces, in many major newspapers, including the New York Times.

But despite the ruling’s impact, legal experts say it will likely be tied up in the courts for years.

Chuck Doskow, professor of law at the University of La Verne, predicts the court of appeals won’t have a decision until next summer. At that point, the unsuccessful party has the option to appeal to the state Supreme Court, and that process often takes around 18 months to conclude.

Doskow said Treu’s arguments are “novel ideas.”

“The California Constitution has a lot of things in it about equality and fairness, but it’s never been applied like this,” he said.

Doskow said the judge didn’t lay a logical foundation for the idea that teacher tenure is directly tied to the quality of education, which in turn was the basis for some of his other conclusions.

“I don’t think you can take that as a given,” he said.

But even if Treu’s reasoning holds up, the implications of California v. Vergara are hard to predict, he said.

“The idea that it can be implemented quickly — it’s not going to happen,” Doskow said.